Two different Courts of Appeal — the Seventh and Ninth Circuits — each issued rulings in separate Telephone Consumer Protection Act cases yesterday. In the case of the Ninth Circuit, it issued separate rulings on two different cases. Here are summaries of each.
Loyhayem v. Fraser Financial and Insurance Services — Ninth Circuit
The Ninth Circuit Court of Appeals overturned a lower court’s dismissal of a TCPA case, ruling that job recruitment calls made to an individual’s cell phone without his or her prior consent constitutes a violation of the statute. The Ninth Circuit ruled that the provisions of the TCPA are not limited to prohibiting calls that include an advertisement or telemarketing.
In this case, the plaintiff received a pre-recorded message offering an employment opportunity that he did not provide consent to receive. A District Court judge dismissed the case, ruling that the TCPA does not prohibit job recruitment calls to cell phones. But the Ninth Circuit ruled the District Court judge misread the statute, ruling that “any call” made to a cell phone using an automated telephone dialing system or an artificial or pre-recorded voice without the recipient’s consent violates the TCPA.
A copy of the ruling is available by clicking here.
Moser v. Benefytt — Ninth Circuit
The Ninth Circuit overturned the certification of two classes in a TCPA case, ruling that the defendant had waived its personal jurisdiction defense by not mentioning it at the motion to dismiss stage of the case.
The plaintiff had sued the defendant, accusing it of violating the TCPA by making unwanted sales calls.
Lack of personal jurisdiction is not an available defense at the motion to dismiss stage, the Ninth Circuit ruled in a split decision.
A copy of the ruling is available by clicking here.
Bilek v. Federal Insurance Company — Seventh Circuit
The Seventh Circuit reversed the dismissal of the case accusing the defendants of being vicariously liable of violating the TCPA, ruling that the plaintiff had alleged “enough” at the current stage of the case for his complaint to move forward.
The plaintiff alleged that he received two unwanted robocalls that were part of telemarketing campaigns initiated by the defendants and carried out by agents they hired to place the calls.
A District Court judge agreed with the defendants that the plaintiff had failed to state a claim against them and dismissed the case. But the Seventh Circuit — while indicating it was not making a determination whether the allegations were sufficient — ruled that the alleged facts “support the inference” that the defendants authorized the companies making the calls to act on their behalf.
A copy of the ruling is available by clicking here
